Dissenting Opinion

When an appellate court reaches a verdict, it is common for a written opinion to be provided, announcing the court’s decision, and its reasoning behind arriving at that decision. When a panel of judges is involved, those judges who disagree with the majority vote may supply their own written opinions, expressing their reasons for dissenting. This is called a dissenting opinion. To explore this concept, consider the following dissenting opinion definition.

Definition of Dissenting Opinion


  1. An opinion filed by a judge who disagrees with the majority decision in an appellate case.

Origin of Opinion

1250-1300       Middle English

What is Dissenting Opinion

When a legal decision is appealed to a higher court, it is generally heard and decided by a panel of judges, rather than a single judge, as in trial court. The judges each express their opinions on the case, after all of the documents have been reviewed, and oral arguments heard, and then vote on the outcome. Majority rules in this case, and one of the judges who voted with the majority writes a formal opinion, declaring the court’s ruling, and explaining the rationale behind how the decision was reached.

The judges who do not agree with the majority vote can write formal opinions as well, explaining why they disagreed with the ruling. This is called a dissenting opinion. When more than one judge has disagreed with the majority opinion, they may all contribute to a single dissenting opinion, or they may each write their own.

For example:

The court ruled against Howard in his civil lawsuit against his former employer. Howard appeals the trial court’s ruling, claiming the court treated him unfairly by not allowing important information to be presented as evidence. The appellate court in his state utilizes a panel of three judges, who reviewed all of the court documents from Howard’s case, as well as the appeal document itself, and the employer’s response to the appeal.

Judges Monihan and Scott decide that the trial court did make a mistake, in that they should have allowed the evidence into the trial. Judge Bowlan disagrees, arguing that the source of the evidence could not be considered valid. Because the majority of the three judges, both Monihan and Scott, vote to overturn the trial court’s ruling, the matter will be sent back for a new trial.

Judge Monihan writes the majority opinion, which explains the appellate court’s reason for its decision, and give direction to the trial court. In this example of dissenting opinion, Judge Bowlan may provide a written explanation of why he disagrees with the decision on the appeal.

History of Dissenting Opinion in U.S. Supreme Court

When the U.S. Supreme Court was organized by the Judiciary Act of 1789, the custom of rendering decisions involved the recordation of each justice’s individual views of the case, which were recorded in written form. The justice with the least amount of time on the Supreme Court was made to offer his opinion first, with the remaining justices offering their opinions in order of seniority.

The first opinions issued by the Supreme Court were in reference to a temporary injunction. Justice William Johnson rendered the first opinion, and Justice James Iredell is credited with issuing the first “I doubt,” rather than dissenting, opinion. This example of dissenting opinion shows Justice Iredell’s independent thinking, and willingness to do his duty by expressing doubt about an issue, as he stated:

“My sentiments have coincided, until this moment, with the sentiments of the majority of the court; but a doubt has just occurred, which I thought it my duty to declare.”

Purpose of Dissenting Opinion

When an appellate court issues a ruling, the method, and perhaps the ruling itself, become what is called “common law.” This means that the same ruling or interpretation must be applied to future cases on the same subject, the same error, or other critical issue on which the court ruled. The court’s written opinion explains the laws and previously-decided cases on which it relied to come to its decision, as well as the thought processes that went into linking that information to the facts of the present case.

Although a judge may issue a dissenting opinion, expressing his or her opposition to the ruling of the majority in the case, nothing in that opinion becomes law. While it may be used in the future by others in an attempt to explain or justify their positions on certain legal issues, no court is bound by opinions expressed in a dissent.

Historically, dissent in the Supreme Court, and in lower appellate courts, have been seen to invite a free exchange of ideas, to provoke action from Congress in changing the law, and even to incite public scrutiny of the high court’s actions and processes. Although the long-held tradition of offering formal dissenting opinions does encourage such questions and actions, there is no doubt that the Supreme Court speaks with the greatest authority when it proffers a unanimous voice.

Difference Between Majority, Concurring, and Dissenting Opinions

The purpose of having a high court of the land composed of a body of justices, rather than a single judge, is to ensure that important issues of constitutionality be reviewed, discussed, and decided by a panel of experienced legal minds. It is a foregone conclusion that these justices will not agree on every case. In fact, while such decisions are rendered on a majority rules philosophy, there is no guarantee that there will even be a majority on every case.

In the Supreme Court, as well as other, lower appellate courts, there are different types of opinions rendered, depending on the views of the judges involved. These include majority opinions, concurring opinions, and dissenting opinions.

Majority Opinion

A majority opinion is a ruling agreed upon by more than half of the judges on the panel, who also reached that ruling for the same reasons. A majority opinion is the controlling opinion, which means that it is the one that will become binding. In truth, there is not always a majority opinion in supreme court cases, which is to say that no decision could be reached by a majority of the justices, or at least they could not agree to the ruling for the same reasons.

A majority opinion is written by a justice in the majority, as assigned by the Chief Justice. Once this justice has written a draft opinion, it is circulated to the other justices in the majority conference for input, though these other justices may write their own opinions, if they differ.

Concurring Opinion

When a justice who voted for the majority decision did so for different reasons than the others, he may write his own opinion, detailing his rationale for the ruling. This is known as a concurring opinion. In fact, it is not uncommon for several concurring opinions to be written, none of which is the view of a majority of justices. Although a concurring opinion is written based on the same decision as the majority ruling, the opinion itself is less useful in future cases, as such differing opinions do not become binding precedent.

When there is no majority of justices who agree as to the legal basis, and other reasons for the ruling, the concurring opinion held by the greatest number of justices is called a plurality opinion.

A Splintered Court

While many people have heard of a “split court,” or the court making a “split decision,” but when Supreme Court justices cannot agree, even on concurring opinions, the issue is known as a splintered court. Although, with an odd number of justices, a majority vote is achievable, if those justices voting in the majority have completely different rationales for doing so, trouble may loom on the horizon.

Many legal professionals believe that concurring opinions – especially in the case of a splintered court, where there are several concurring opinions – create confusion in interpretation of the law, and in lower court decisions. This is because the rationale and method used in arriving at the decision, provided in the written opinion, normally guides judgment in future similar cases, or in making decisions based on the same important principle.

When attorneys and courts cannot identify the controlling legal principles, because each of the justices has provided different principles, justice itself may be stymied. On the other hand, splintered and plurality decisions may open the door to future clarification, or even re-thinking interpretations of the issues.

Scathing Dissenting Opinion Examples in Slavery Ruling

In 1833, a U.S. Army surgeon, Dr. John Emerson, bought a slave named Dred Scott. Dr. Emerson took Scott with him when he moved to an Army base in the Wisconsin Territory, where the Missouri Compromise had banned slavery. Scott lived in the area for four years, remaining and seeking employment during the stretches that Dr. Emerson was away. During this time, Scott married and had children. In 1840, Scott and his family moved with Dr. Emerson to St. Louis, where the doctor died, bequeathing the entire Scott family to his wife. In 1846, Dred Scott, who had worked diligently to save money, sought to buy his family’s freedom from the doctor’s wife. She refused.

Scott sued the woman in state court, arguing that he and his family were free, as they had lived in a territory where slavery was outlawed. After four grueling years, the court finally declared the Scotts to be free. There was further arguing in court, as Scott had been denied his pay the entire time the matter was before the court, and Mrs. Emerson refused to pay, instead taking the matter to the Missouri Supreme Court, which overturned the state court’s ruling.

When the matter made its way to the U.S. Supreme Court in 1856, the Court ruled 7-2 in opposition to Dred Scott’s claim to freedom. Chief Justice Roger Taney expressed, in the Court’s written opinion, that certain clauses of the Constitution “point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.” Justice Taney went on to say that blacks did not even have the right to sue, as they were not citizens of the United States.

Two scathing dissenting opinions were entered on the matter. The first, penned by Justice John McLean, railed against the idea that slaves were mere property, as he stated:

“Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen … Where no slavery exists, the presumption, without regard to color, is in favor of freedom.”

McLean spelled out that, in states and territories where slavery had been outlawed, no man had the authority to control a slave by force, nor can he be given away, sold, or left to the man’s heirs upon his death. McLean’s impassioned dissent went on to say:

“A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.”

Justice Benjamin Robbins Curtis, in his dissenting opinion, attacked the actions of the Court in determining that it had no jurisdiction over Scott’s case, then continuing to pass judgment on the merits of the case. In other words, he did not feel that the Court could have it both ways – refusing to claim jurisdiction, but issuing a decision anyway. Curtis also expressed a concern over the rendering of decisions based on political or personal considerations, rather than on strict interpretation of the Constitution, as he reasoned:

“[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

Curtis further expressed his concern over a government that is not really a result of the will of the people as he stated:

“When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.”

In this example of dissenting opinion, the very roots of the U.S. Constitution were brought into question, as two justices stood apart, questioning whether the consideration of blacks as chattel was intended by the Constitution itself.

Related Legal Terms and Issues

  • Appeal – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Appellate Court – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Binding Precedent – A rule or principle established by a court, which other courts are obligated to follow.
  • Common Law – Laws that are based on court or tribunal decisions, which govern future decisions on similar cases.

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